We have considered the case of the wife, the son and the daughter[[323]], as far as can be done until we come to deal with the family relations; and we have examined the position of one peculiar class of the unfree, namely the comites or gesíðas of the kingly leaders. Another, but less favoured, class remain to be noticed, those namely whom the Latin authors designate by the terms Libertus and Servus, and who, among all the nations of Germanic origin, are found under the corresponding denominations of Lazzi or Dió, Læt or Ðeów, Lýsingr or þræl. These have no honourable, no profitable service to compensate for the loss of independence, but form the large body of hired cultivators, the artizans and handicraftsmen in various branches of industry, the prædial, even the domestic or menial servants of the free landowner.
The grounds as well as the degrees of slavery (by which term I mean dependence, the being in the mund of another, and represented by him in the folcmót) are various; one, viz. poverty arising from over-population, has been noticed in the last chapter; but I agree with Eichhorn[[324]] and Grimm[[325]], in attributing the principal and original cause of slavery in all its branches to war and subsequent conquest. Another and important cause is forfeiture of liberty for crime; and the amount of dependence, the gentler or harsher condition of the serf, depends to a great extent upon the original ground of servitude. If the victor has a right to the life of the vanquished, which by the law of nature is unquestionably the case, he possesses à fortiori a perfect claim to the person, the property and the services of his prisoner, if his self-interest or the dictates of humanity induce him to waive that right[[326]]. These remarks apply no doubt, in their full force, only to our pagan forefathers; but even Christianity itself did not at once succeed in rooting out habits which its divine precepts of justice and mercy emphatically condemn. Beda, in his desire to prove the efficacy of the mass for the dead[[327]], tells an interesting story of a young noble who was left severely wounded on the field, after a battle between Ecgfrið of Northumberland and Æðelred of Mercia, in the year 679. Fearful of the consequences should his rank be discovered, he disguised himself in the habit of a peasant, and assumed that character, at the castle of the earl into whose hands he fell; declaring that he was a poor, and married man[[328]], who had been compelled to attend the army with supplies of provisions. But his language and manners betrayed him, and at length, under a solemn promise of immunity, he revealed his name and station. The reply of the earl is characteristic; he said: “I knew well enough from thy answers that thou wert no rustic; and now indeed thou art worthy of death, seeing that all my brothers and relations were slain in that battle: yet I will not kill thee, lest I should break the faith that I have pledged.” Accordingly when his wounds were healed, his captor sold him to a Frisian in London, who, finding that he could not be bound, finally released him on his parole and permitted him to ransom himself. Whatever the motive, it is thus clear that the victor possessed the right of life and death over his captive, even when taken in cold blood; and the traditions, as well as the historical records of the northern nations are filled with instances of its exercise.
It does not however by any means follow that the total defeat of a hostile tribe resulted in the immediate and direct enslaving of all the survivors: as in the example just cited, the blood-feud no doubt frequently led to the murder of the captive chiefs and nobles, even if less justifiable motives did not counsel the same miserable means of removing dangerous competitors[[329]]; but the heavy doom of death must have been one of the melancholy privileges of the noble class: and even though many of the common freemen may have been sold or retained as slaves at the caprice of the captors, still we cannot suppose this to have been the lot of any but those who had actually taken part in combat; no natural or national law could extend these harsh provisions to the freemen who remained quiet at home. Nevertheless even these were liable to be indirectly affected by the hostile triumph, inasmuch as the conquerors appear invariably to have taken a portion, more or less great, of the territory occupied by the conquered[[330]]: and wherever this is the case to the extent of depriving the cultivator of means sufficient for his support, he has no resource but to place himself in dependence upon some wealthier man, and lose, together with his lot or κληρος, the right to form an integral part of the state: the degree of his dependence, and the consequent comparative suffering to himself, may vary with a multitude of circumstances; but the one fact still remains, viz. that he is in the mund or hand of another, represented in the state by that other, and consequently, in the most emphatic sense of the word, unfree.
It is now generally admitted that this must have been the case with the whole population in some districts, who thus became dependent upon a few intrusive lords: but still these populations cannot be said to have stood in that peculiar relation to the conquerors, which the word servus strictly implies towards an owner. The utmost extent of their subjection probably reached no further than the payment of tribute, the exclusion from military duty and the standing under a protectorate[[331]]. Inglorious and easy, when once the dues of the lord were paid, they may even have rejoiced at being spared the danger of warfare and the laborious suit of the folcmót, and forgotten that self-government is the inherent right and dignity of man, in the convenience of having others to defend and rule them. Moreover the territorial subjection was not necessarily a juridical one: indeed some of the Teutonic conquerors recognized as positive law, the right of even the dependent Romans and Provincials to be judged and taxed according to the rules and maxims of Roman, not Salic or Langobardic, jurisprudence: and this, when carried out in the fullest detail with respect to the various tribes at any time united under one supreme head, constitutes what is now called the system of Personal Right, whereby each man enjoyed the law and forms of law to which he was born, without the least reference to the peculiar district in which he might happen to live; in other words, that he carried his own law about, whithersoever he went, as a quality attached to his own person, and not in the slightest degree connected with or dependent upon any particular locality. In this way Alamanni, Baiowari, Saxons, Frisians, Langobards, Romans, Gallic provincials and Slavonic populations, were all united under the empire of the Salic and Ripuarian Franks[[332]]. The peculiar circumstances under which the conquest took place must, of course, have defined the relations under which the subject stood to the ruling state. It is conceivable that the conquerors might not want land, but be contented with glory and pillage; or they might not be able to seize and retain the conquered territory: or again they may have required new settlements for themselves and their allies, to obtain which they waged a war of extermination. Thus the Suevi, although unable to expel the Ubii altogether from their territory, yet succeeded in rendering them tributary[[333]]; while in Thuringia, the Franks and their Saxon allies seized all the land, slaying, expelling or completely reducing the indigenous inhabitants to slavery. Another and curious instance may be cited from a comparatively late period, when the little island of Man was invaded, conquered and colonized by the Norwegian Godred. “Godredus sequenti die optionem exercitui suo dedit, ut si mallent Manniam inter se dividere et in ea habitare, vel cunctam substantiam terrae accipere et ad propria remeare. Hiis autem magis placuit totam insulam vastare, et de bonis illius ditari, et sic ad propria reverti. Godredus autem paucis qui secum remanserunt de insulanis australem partem insulae, et reliquiis Mannensium aquilonarem tali pacto concessit, ut nemo eorum aliquando auderet iure haereditario sibi aliquam partem terrae usurpare. Unde accidit ut usque in hodiernum diem tota insula solius regis sit, et omnes redditus eius ad ipsum pertineant[[334]].” The not being able to dispose of property hereditarily is the true badge and proof of slavery.
Tacitus draws a great distinction between the different degrees of servitude among the Germans. He tells us that the unsuccessful gambler who had staked and lost his liberty and the free disposal of his own body upon one fatal cast of the dice, would voluntarily submit to be bound and sold[[335]], but that it was not usual for them to reduce their other serfs to the condition of menials; they only demanded from them a certain amount of produce (or, unquestionably, of labour in the field or pasture), and then left them the enjoyment of their own dwellings and property[[336]]. The general duties of the house, beyond such supplies, which were provided for among the Romans by the ministeria per familiam descripta, were left among the Germans to the wife and children of the householder[[337]]. It will be desirable to follow a somewhat similar distinction in treating of the different kinds of slaves; and having shown that one class of the unfree are those who have been partially dispossessed by conquest, but retain their personal freedom in some degree, to proceed to those who are personally unfree, the mere chattels of a lord who can dispose of them at his pleasure, even to the extent of sale, mutilation and death. The class we have hitherto been observing is that intended by the term Læt in Anglosaxon, Litus, Lito, Lazzo, etc. in German monuments[[338]], and the Laeti of the Romans, applied by them to the auxiliary Germans settled on imperial land, and bound to pay tribute and perform military service. They formed, as Grimm has well observed, a sort of middle class among the unfree; comprising the great majority of those who, without being absolutely their own masters, were yet placed somewhat above the lowest and most abject condition of man, which we call slavery. This condition among our forefathers was termed þeówet; the servus was þeów, the ancilla þeówen; or, as the original serfs of the English were the vanquished Britons, Wealh and Wyln.
Without confining ourselves to the definition in the law of Henry the First, we may distribute the different kinds of slaves into classes, according to the different grounds of slavery[[339]]. Thus they are serfs casu or natura, and the serfs casu comprise serfs by the fortune of war, by marriage, by settlement, by voluntary surrender, by crime, by superior legal power, and by illegal power or injustice. The remaining class are serfs natura, or by birth.
The serfs by fortune of war were those who were not left under the public law to enjoy a portion of their ancient freedom and possessions, but were actually reduced to a state of prædial or menial servitude by their captors, and either reserved for household drudgery or sold, at their arbitrary will. The Cassandra and Andromache of Grecian story stand here side by side with our own German Gudrún. This part of the subject has received sufficient illustration from the tale of the thane Imma, already quoted from Beda.
The serf by marriage was the free man or free woman who contracted that bond with a slave: in this case the free party sank to the condition of the unfree, among some at least of the German races. The Salic law is explicit upon this point both with respect to man and woman[[340]]: among the Ripuarian Franks it was enacted thus[[341]]: “If a free Ripuarian woman hath followed a Ripuarian serf, let the king or the count offer unto her a sword and a spindle: if she accept the sword, let her therewith slay the serf; if the spindle, let her abide with him in servitude.” In this case the Burgundian law[[342]] commanded both parties to be slain; but if the relatives of the woman would not put her to death, she became a serf of the king. Saxo Grammaticus cites a similar law for Denmark[[343]]. There is no evidence of the Anglosaxon practice in this respect, but it appears unlikely that the case should be of common occurrence. Probably purchase and emancipation always preceded such marriages, and the law of Henry the First makes no mention of this among the grounds of slavery[[344]].
The serf by settlement is he who has taken up his abode in a district exclusively inhabited by the unfree; and to this refers the German expression “Die luft macht eigen,” i. e. the air makes the serf. There is no distinct Anglosaxon provision on the subject, but perhaps we may include in this class some at least of those who taking refuge on a lord’s land, and among his sócmen, without any absolute and formal surrender of their freedom, did actually become his serfs and liable to the services due to him from all their neighbours[[345]]. The generality however of such cases fall under the next following head, viz.—
The serfs by surrender, the sua datione servus of Henry’s law, the servus dedititius, and giafþræl of the Norse law. Among these Grimm numbers the serfs whose voluntary submission so much surprised the Roman philosopher. Even the law of the Germans, so generally favourable to liberty, contemplates and provides for the case of such a voluntary servitude[[346]]. This might arise in various ways. For example, a time of severe scarcity, such as are only too often recorded in our ancient annals, unquestionably drove even the free to the cruel alternative of either starvation or servitude: “Subdebant se pauperes servitio, ut quantulumcunque de alimento porrigerent,” says Gregory of Tours[[347]]; Gildas tells us a similar tale of the Britons[[348]]; and even as late as the Norman conquest we find Geatflǽd, a lady, directing by her will the manumission of all those who had bent their heads in the evil days for food[[349]]. Another was, no doubt, debt, incurred either through poverty or crime; and when the days of fierce and cruel warfare had passed away, this must have been the most fertile source of servitude. I have not found among the Anglosaxon remains any example of slavery voluntarily incurred by the insolvent debtor, but the whole course of analogy is in favour of its existence, and Marculf supplies us with the formulary by which, among the Franks, the debtor surrendered his freedom to the creditor. It may be presumed that this servitude had a term, and that a certain period of servile labour was considered equivalent to the debt. The case of crime was undoubtedly a very common one, especially as those whose necessities were the most likely to bring them in collision with the law were those also who were least able to fulfil its requirements, by payment of the fines attached to their offences. The criminal whose own means were insufficient, and whose relatives or lord would not assist him to make up the legal fine he had incurred, was either compelled to surrender himself to the plaintiff, or to some third party who paid the sum for him, by agreement with the aggrieved party. This was technically called þingian[[350]], and such a serf was called a witeþeów, convict, or criminal slave. These are the servi redemptione of Henry the First.